LIKE JOHN BUNYAN’S WATERMAN IN Pilgrim’s Progress who looked one way and rowed another, the Supreme Court of India today finds itself in a similarly curious position. On the one hand, it approaches its constitutionally envisaged task of authoritatively laying down the law of the land with great vigour, regularly quoting the importance of certainty to the rule of law. On the other, by liberally construing its discretionary powers to admit cases and relaxing rules of standing, it has expanded its docket significantly. Such docket expansion has proved antithetical to the need for certainty flowing from a final judicial determination. It has meant a larger number of judgments pronounced by an ever-increasing number of two-judge Division Benches. As the pool of precedent has grown, courts and counsel have been unable to keep pace with such growth, which inevitably leads to inconsistency in the law. This article focusses on the inconsistency prevalent in the judgments of the Supreme Court; its consequences, both practical and in matters of principle; and preliminary steps for reform.
When Constitutional Adviser B.N. Rau met Felix Frankfurter, Justice of the Supreme Court of the United States and one of the foremost legal minds of his time, to seek his advice on certain salient aspects pertaining to the Draft Constitution of India, Frankfurter made a key suggestion on the functioning of the Supreme Court. He recommended that the Supreme Court, as the apex court, must sit en banc (have one bench only) to ensure that determinations are final and authoritative. Despite the obvious merit of this view and the early history of the court that in large part adhered to it, over time such a view has been rendered anachronistic.
Nick Robinson’s empirical study on the Supreme Court shows that between 2005 and 2010, the number of cases instituted in the Supreme Court increased by 51.8 per cent. Equally crucially, the number of matters admitted by the Supreme Court and accepted for regular hearing increased by 69.8 per cent. At the same time, by the latest in a series of constitutional amendments to increase the sanctioned strength of the Supreme Court, in 2008, its strength was increased to 31 (30 puisne judges + the Chief Justice). Today, the court functions with 30 judges (29 puisne judges + the Chief Justice), sitting routinely in two-judge Division Benches as facilitated by Order VII Rule 1 of the Supreme Court Rules.
In fact, the number of Constitution Bench judgments (five or more judges) constituted a mere 0.12 per cent of all disposals between 2005 and 2009, thereby demonstrating that the majority of judgements were delivered by two-judge Division Benches (or in some cases three-judge Division Benches).
These three factors—increasing workload, a higher rate of admission, and constitution of multiple two-judge Division Benches—have combined to result in a large increase in the number of judgments handed down by the Supreme Court. Unsurprisingly, the number of judgments in Supreme Court cases, a leading reporter said, increased from 10 volumes in 2000 to 13 volumes in 2005 to an unprecedented 18 volumes in 2009. This increases the probability of inconsistencies in judgments significantly—the more judgments there are, the more the likelihood of some being overlooked, leading to inconsistency. In actual practice, too, this has been greatly borne out.
For example, whether a police officer is bound, under Section 154 of the Code of Criminal Procedure, to register a first information report (FIR) when a cognisable offence is made out or has the discretion to conduct a preliminary inquiry before deciding whether to do so is a question that has long vexed the courts. More than five two-judge Division Benches of the Supreme Court have reached starkly opposite and irreconcilable conclusions over four decades. This led the court in Lalita Kumari vs State of Uttar Pradesh (Supreme Court, 2012) to finally refer the matter to a Constitution Bench for resolution, 20 years after the conflict first started. Similarly, conflicting decisions of the Supreme Court can be found in several other areas of law.
Why is inconsistency such a problem? Inconsistency in decisions of the apex court in a country has significant consequences, both in matters of principle and in more practical aspects. In matters of principle because inconsistency is the antithesis of certainty in judicial decision-making and equal treatment of litigants. Certainty in judicial decision-making is a key facet of the rule of law. It allows individuals to plan their lives and take decisions on the basis of settled law. This is achieved through the doctrine of precedent. By laying down authoritative precedent, courts provide the legal framework for all human activity. In the case of the Supreme Court of India, this is given constitutional force by Article 141, which makes the law declared by the Supreme Court to be binding on all courts in India. At the same time, equal treatment of litigants demands that two similar cases are treated similarly. Not doing so would render the legal process unjust qua a particular litigant. The doctrine of precedent again seeks to prevent such unequal treatment by ensuring that courts are bound by settled propositions of law laid down in past decisions. Irreconcilable inconsistency in judgments makes the doctrine of precedent unworkable, thereby making the law operate in an unequal manner.
Equally detrimental are the practical problems that inconsistency in judicial decision-making engenders. A non-functioning system of precedent is fundamentally inefficient—considering a matter afresh rather than having the option of simply following an analogous decision made in the past is time-consuming, onerous and consequently highly inefficient. At the same time, it worsens the problem of judicial backlog in India. This is because a lack of settled precedent encourages potential litigants to, as H.M. Seervai wrote, “take a chance” at the Supreme Court, believing there is some possibility of success. This could happen both in areas where existing decisions are inconsistent and in areas where they are not, since there is a likelihood that an inconsistent judgment may be handed down. The sharp increase in the number of matters filed and accepted for regular hearing by the Supreme Court bears testimony to this proposition. As Nick Robinson writes, it is likely that this is “not a sign of a judicial system that is successfully implementing a system of precedent”
Preliminary suggestions for reform Inconsistency in Supreme Court decisions is not a straightforward problem to resolve. The increase in the number of matters filed and accepted, decisions handed down, and the proliferation of two-judge Division Benches are not isolated developments.
On the contrary, as Rishad Ahmed Chowdhury has argued, they are symptomatic of deeper and more conscious choices made by the Supreme Court to expand its docket notwithstanding the resource limitations it faces. At the same time, inconsistency may not only be a fallout of these factors. It could equally be a reflection of the depth of research by counsel in certain matters, the quality of reporting of judgments, and the availability and effectiveness of electronic searches for judgments. Subject to these caveats, the following reform proposals are being advocated, not as comprehensive solutions to the problem of inconsistency but rather as focussed attempts to mitigate the extent of its intractability.
Currently, over 80 per cent of the court’s decisions are matters that come to it by way of special leave petitions (SLPs) under Article 136 of the Constitution. Though such jurisdiction is discretionary and the Supreme Court dismisses a significant majority of such matters, there is, nonetheless, little guidance in terms of an established jurisprudence on when courts will entertain a matter, lesser still on when a matter will be referred to a Constitution Bench. When it admits such petitions, the Supreme Court must provide clear threshold requirements in law as to when such a matter under Article 136 will be taken up. This will, over time, lead to a degree of doctrinal clarity of the ways in which discretion under Article 136 will ordinarily be exercised, without fettering the court’s remit in any significant way.
Secondly, when it does accept petitions for regular hearing, it must at that stage, following a prima facie hearing certify whether the matter is one which “involves a substantial question of law as to the interpretation of the Constitution” as provided for in Article 145(3) of the Constitution. Such a question must at that stage itself be referred to a Constitution Bench for disposal, and over time doctrinal clarity ought to emerge as to what such questions may involve. The merits of these proposals are twofold: they make for greater clarity to the currently unbounded exercise of discretion under Article 136, thereby acting as an automatic filter for petitions. It also reduces the number of Division Bench decisions on questions of constitutional importance, reducing the chances of inconsistency in these seminally important matters. Additionally, it will comply with the requirement of Article 145(3), which seems to be observed in the breach at present.
It is equally imperative that a proposal advocated by the Senior Advocate and eminent jurist Fali Nariman, that decisions of two-judge Division Benches not be considered law for the purpose of Article 141 of the Constitution, be given serious consideration. The effect of such a proposal is that a decision by a two-judge Bench of the court binds the parties before the case but does not become a precedent that must be followed.
This proposal can be built upon by clarifying that decisions by two-judge Benches can be cited later, have persuasive value and can be used by the Supreme Court to dismiss an SLP at the outset but will not bind future courts. Further, this will apply only prospectively, thereby not affecting existing two-judge decisions that have been cited and relied upon as settled law. In addition, it will not affect the precedential value of decisions of three-judge Benches or Constitution Benches.
This proposal is founded on a realistic proposition that eliminating inconsistency in an apex court as large as the Supreme Court of India is a pipe dream. Hence, it is important to focus on how best to mitigate it. Since decisions by two-judge Division Benches, though necessary in view of the sheer volume of litigation, are a key source of inconsistency in Nariman’s experience, their precedential value must be cautiously stripped. This has two benefits—the first formal and the second substantive.
The key formal benefit is that inconsistent decisions by two-judge Benches not being considered law brings formal certainty to the law itself. Though inconsistent decisions may still be rendered as their elimination is not a realistic possibility at this time, when they are rendered, they do not affect the certainty of the law since they do not have binding force under Article 141. Certainty, in this view, can only be the outcome of decisions by a three-judge Bench or a Constitution Bench. These, which owing to the relative infrequency of their constitution, would be less likely to render inconsistent decisions.
The substantive benefit is that such a proposal mitigates the practical problem of the Supreme Court and the High Courts having to reconcile seemingly irreconcilable precedents, as they regularly must do now. They can be free to follow either of the conflicting decisions depending on the facts of the case, or if doing so would be unjust to the litigant concerned, refer the matter to a three-judge or a Constitution Bench (if it satisfies Article 145(3)) for final disposal. This will save immense amounts of judicial time and thereby help towards the speedy disposal of cases.
Of course, several drawbacks are foreseeable. It may be argued that this may increase the number of decisions that are actually contrary to each other without being considered in law to be so since two-judge decisions are not binding. It could also lead to greater judicial time being spent in cases where earlier a two-judge Bench decision would be binding precedent. Whether, on balance, these are weightier than the merits of such a proposal is a subject of further study which needs to be undertaken before such a proposal is implemented.
Unlike Bunyan’s Waterman As the final appellate court and the highest constitutional court in India, the Supreme Court enjoys widespread respect amongst the people. It has admirably persevered to fulfil its constitutional role, laying down the law authoritatively and meting out justice to citizens who approach it. Noble tasks, however, rarely complement each other, and in this instance, too, its twin personas as a court of law and as a court of justice have often collided.
Inconsistency has thus resulted as an inevitable consequence. This article has demonstrated key reasons for such inconsistency and why it affects the very foundations of the legal system in India. If these reasons are not understood and the consequences of inconsistency not viewed with the utmost seriousness, the problem could soon become unmanageable. Before that happens, it is advisable that the court itself acts swiftly to remedy the situation, so that unlike Bunyan’s waterman, it can look and row in the same direction.
Arghya Sengupta is a Stipendiary Lecturer in Law, Pembroke College, University of Oxford, U.K., and Founder and Fellow, Vidhi Centre for Legal Policy, New Delhi.
[I would like to thank Tanmaya Mehta and Debesh Panda, Advocates, Supreme Court of India, for their inputs for the article.]
References:
1. Robinson, Nick (December 14, 2012): “The Indian Supreme Court by the Numbers”, LGDI Working Paper No. 2012-2.
2. Seervai, H.M. (2008): Constitutional Law of India (4th edition, New Delhi: Universal Law Publishing).
3. Chowdhury, Rishad Ahmed (2012): “Missing the Wood for the Trees: The Unseen Crisis in the Supreme Court”, NUJS Law Review , 5, page 351.
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